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    Off-Duty Cop Road Rage Murder Trial – next big self-defense case

    Off-Duty Cop Road Rage Murder Trial – next big self-defense case

    The shooter was black and the victim white, but there’s a big legal difference from Zimmerman and Dunn: In Maryland there is a legal duty to retreat.

    Race has been a major element in many of the more prominent self-defense cases we’ve covered in recent months.

    Both the George Zimmerman and Michael Dunn cases involved a white man shooting and killing a black teen, with both arguing the shootings were justified self-defense (Zimmerman successfully, Dunn temporarily so).

    The Marissa Alexander case involved a black woman shooting at a black man and his two black children, but the severity of her 20-year prison sentence was attributed by many to her minority race (especially in the aftermath of the Zimmerman acquittal).

    Within weeks, however, we’ll be live-covering a self-defense trial in which the racial paradigm has been flipped:  the trial of Joseph Walker, a black New Jersey police officer charged with first degree murder for the road-rage fueled shooting death of the white (and apparently unarmed) victim Joseph Dale Harvey Jr.

    We first covered this case back in August, in the immediate aftermath of the Zimmerman trial and not long after the June 8 shooting had taken place:  “NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense.”

    The facts at that time were in some important respects vague, and of course they were sourced from media reports, which alone makes them of questionable reliability.  Since then some additional details have emerged from the Walker camp which presents his actions in a more favorable light.  Given the source, of course, these can hardly be deemed unbiased.

    The “Facts” of the Case As Currently Understood

    Both sides agree that the June 8 shooting flowed from a perceived traffic offense that grew into road rage and from there to a death.

    Both men were waiting to turn at the same intersection, essentially beside each other, Harvey in a green Honda Accord with a single passenger (Adam Pidel), and Walker in a Kia minivan with his wife and three small children.  It appears that Harvey was in the left lane, and Walker in the right.  When the light changed to green, Walker made a left turn across the front of Harvey’s vehicle.  Harvey was forced to turn his Honda onto the shoulder of the road to avoid a collision.  This, apparently, enraged him, and induced him to pursue Walker’s minivan.

    The next set of details get less clear.  Now driving side-by-side, the two vehicles took turns swerving at each other, almost colliding several times.  (Or perhaps Harvey was aggressively swerving at Walker, Walker was swerving away and then necessarily turning back onto the roadway — an act that would look much as if he were swerving back at Harvey?)

    At some time during this altercation, Walker purportedly showed Harvey his police officer’s badge, and perhaps even his pistol, a Glock in .45ACP.

    In one report, Harvey threw an object, purportedly a bottle, that struck Walker’s minivan, after which Walker pulled over and exited the vehicle to check for damage.  Whatever Walker’s reason for pulling over, Harvey chose do so so as well, a hundred or so feet further up the roadway.

    When he stopped, Harvey exited his vehicle and began walking towards Walker.  According to Walker’s narrative of events, Harvey’s demeanor was clearly combative  He was swearing at Walker, calling both he and his wife the “n-word.”  Seeing Walker’s upheld badge, Harvey is claimed by Walker’s lawyers to have said, “(Expletive) you. I don’t care if you’re a police officer, you’re gonna die tonight.”

    Unarmed Disparity of Force? Demonstrable Racial Animus?

    It should be noted that Harvey, at almost 300 pounds, was considerably larger than Walker.

    Also, publicly released photos of Harvey have shown him wearing clothing with the label “SKINS” prominently displayed. It’s unclear what that refers to, but it might be an Ultimate Fighting Championship related shirt.

    If there is any evidence of Harvey’s involvement in UFC, a key issue to keep an eye on will be whether and to what extent Harvey’s reputation in the community and specific past acts may be admissible to show either that he was more likely to have been the aggressor or to justify Walker’s reasonable fear of deadly harm, both to himself and his family.

    (Joseph Harvey, Jr.)

    Importantly, there’s also some dispute as to the distance at which Walker shot Harvey, with some accounts claiming Harvey was still tens of feet away when shot and others claiming that Walker did not shoot until Harvey was almost within contact distance (and well within the 21-foot “danger zone” of the Tueller drill).  It appears that Harvey was unarmed as he approached Walker, and if so, would have been unable to present an imminent threat until he had come within closing distance.

    Maryland:  Very Much a Duty-to-Retreat State

    A key question will center on the fact that Maryland is very much a duty-to-retreat state.  Under these facts it seems odd that as the unarmed Harvey approached, Walker did not simply step back into his minivan, place it in reverse, and back out of the situation.

    It is true, of course, that Harvey might have responded by regaining his own vehicle and again pursuing Walker — but in the absence of retreat being demonstrably ineffective, Walker would be obliged to take advantage of an apparently safe avenue of retreat before resorting to the use of deadly force.

    Harvey was reportedly struck by three bullets, one of which hit him high in the leg, likely severing the femoral artery.  He was pronounced dead upon arrival at the local hospital.

    Walker Charged with First Degree Murder, Weapons Offenses, out on $1 Million Bail

    Walker was initially charged with second degree murder, but this charge was bumped to first degree murder, for which the greater charge was approved by the grand jury. If found guilty of first degree murder under Maryland’s  § 2-201. Murder in the first degree he faces a sentence of 35 years to life.

    Walker was also charged with two counts of using a handgun while committing a felony under Maryland’s § 4-204. Use of handgun or antique firearm in commission of crime, which carries a mandatory minimum sentence of 5 years.  Walker is currently awaiting trial on $1 million bail, and has been suspended from his job without pay for the duration.

    The trial is scheduled to begin May 21, and between now and then we here at Legal Insurrection will post up occasional pieces setting out the current state of Maryland self-defense law and how it is likely to apply to this case.

    Maryland Self-Defense Law Almost Entirely Based on Court Decisions, Not Statutes

    It is notable that Maryland is one of the minority of states that effectively has no self-defense statutes.  There is a statute for civil immunity for defense of dwelling or place of work, and another covering battered spouse syndrome, but that’s about it.

    Instead, Maryland’s embodiment of the Five Principles of the Law of Self Defense must be found in case law (court decisions). A recent statement of MD’s law of deadly-force self-defense can be found in Wilson v. Maryland, 7 A.3d 197 (MD, Ct. Spec. App. 2010):

    We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self-defense in the following terms:

    (1) The accused must have had reasonable grounds[5th Principle] to believe himself in apparent imminent or immediate [2nd Principle] danger of death or serious bodily harm from his assailant or potential assailant;

    (2) The accused must have in fact believed himself in this danger; [5th Principle]

    (3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict [1st Principle]; and

    (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. [3rd Principle]

    and, in addition:

    It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself. [4th Principle]

    Given the paucity of statutory authority to look at in this case — as was so richly available in the George Zimmerman, Michael Dunn, and even Marissa Alexander trials — you can count on Legal Insurrection to dig through the case law to find the relative law to apply to this case.

    So, keep your eyes on Legal Insurrection for continued coverage of the Joseph Walker case, pre-trial, during the trial, and post-verdict.

    –Andrew, @LawSelfDefense


    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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    Comments



     
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    Richard Aubrey | February 25, 2014 at 5:11 pm

    Due to circumstance and distance–the latter including presumed time–it seems to me Fat Guy was in three different situations:
    An asshole making threats by driving.
    An asshole getting out of his car.
    A presumably lethal threat.

    In the first case, is the other party required to retreat by driving in a different direction? If he does so, can he count on not being followed by a guy who’s such an asshole? IOW, is retreat actually possible?

    In the second case, is there any duty to retreat while the guy is so far away he’s not a threat? It would seem the judgment should have been that the guy’s such an asshole as demonstrated in the first situation that avoiding him was a duty.

    Third situation: Fat guy is within a dangerous distance of the cop. “dangerous” would seem to be defined as not having an avenue of retreat. If Fat Guy was close enough that the cop didn’t think he could get into his vehicle in time, then there may not have been an avenue of retreat.

    But can you make a case as a prosecutor that a guy has a duty to retreat from a noisy asshole who isn’t close enough to do any damage? Yes, it would be prudent. But is it a duty?

      “But can you make a case as a prosecutor that a guy has a duty to retreat from a noisy asshole who isn’t close enough to do any damage? Yes, it would be prudent. But is it a duty?”

      Normally I would argue that there’s no duty to retreat until the threat is manifest.

      So, if some is approaching you with no appearance of threat, only to suddenly whip out a knife and charge, the duty to retreat would arise only at the point a reasonable person could expect they were facing, or imminently about to face, the possible need to use deadly force in self-defense.

      But that’s not what happened here. Harvey was clearly enraged throughout the encounter, emerged from his car enraged, walked the 100 or so feet enraged, allegedly shouting racial slurs and threats the entire time, until he was finally shot by Walker. Harvey didn’t grow any more dangerous over that time, but for the closing distance, which of course Walker was observing the entire time. Harvey didn’t grow more muscular, or suddenly display a weapon–so a reasonable person would know that if they did not retreat the necessity to use deadly force would be a certainty.

      Walker knew what the inevitable outcome was going to be if he did not retreat. There was no reasonable basis to believe that Harvey was suddenly going to regain his temper and not follow through with his purported threats of violence.

      To my way of thinking, then, the threat and likely necessity to respond to it with deadly force if it came to fruition, was manifest the entire time that Harvey was closing on Walker’s vehicle.

      The alternative would be for the law to accept that Walker was entitled to stand in place as the enraged Harvey came ever closer, with no duty of retreat in this duty-to-retreat state right up until the simultaneous instant that Walker was justified in shooting Harvey in necessary self-defense.

      Under such a strained interpretation of duty-to-retreat the phrase would have no meaning whatever–the moment the duty to retreat arises is also the moment you’re lawfully allowed to use deadly force in self-defense?

      Somehow I don’t think Maryland is going to adopt that interpretation of the duty to retreat.

      –Andrew, @LawSelfDefense


     
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    sequester | February 25, 2014 at 5:24 pm

    Apparently Walker was legally prohibited from leaving the scene by the Maryland Vehicle Code

    TITLE 20. VEHICLE LAWS — ACCIDENTS AND ACCIDENT REPORTS

    Md. TRANSPORTATION Code Ann. § 20-103 (2013)

    § 20-103. Driver to remain at scene — Accidents resulting only in damage to attended vehicle or property

    (a) Stopping vehicle at scene of accident. — The driver of each vehicle involved in an accident that results only in damage to an attended vehicle or other attended property immediately shall stop the vehicle as close as possible to the scene of the accident, without obstructing traffic more than necessary.

    (b) Returning to scene of accident. — The driver of each vehicle involved in an accident that results only in damage to an attended vehicle or other attended property shall return to and remain at the scene of the accident until he has complied with § 20-104 of this title.


       
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      Gremlin1974 in reply to sequester. | February 25, 2014 at 7:20 pm

      I think it is kind of a stretch to think that Walker would have any clue about this “vehicle code”. Also, no vehicle code can make you stay in a place that you are in danger. That may be the law, but even if he did know the law, I don’t think anyone would push that he should have been following it.

      “Apparently Walker was legally prohibited from leaving the scene by the Maryland Vehicle Code”

      That’s a joke, right?

      Surely you’re not saying that Walker gets a pass on Maryland’s duty-to-retreat before he shoots someone dead on the basis of a law intended to deter people from fleeing the scene of a motor vehicle accident?

      Well, good luck with that.

      –Andrew, @LawSelfDefense


     
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    Richard Aubrey | February 25, 2014 at 10:04 pm

    Back–several decades–in the day, I saw maybe half a dozen cases where the approaching threatening guy stopped several feet from the target person and threatened more loudly. IOW, since the threatening approach didn’t work, whatever that was supposed to be, that was all except for some additional nasty talk up close.
    Not sure how I’d look at a situation like that, given what I’d seen, versus the likely actual threat. I might presume he’s going to stop and just keep running his mouth. Actual fights, compared to loudly threatening bluster, are quite rare. Maybe the cop guessed wrong.


       
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      Ragspierre in reply to Richard Aubrey. | February 25, 2014 at 10:29 pm

      Right.

      I once had a guy literally charge me, head down, full-tilt, only to stop a few feet away as I stood grinning at him (a very peculiar response unique to me, and one which unintentionally makes people even madder).

      He expected me to throw the first punch. Instead I noted he was drunk, and it wouldn’t really be fair. His female escort gently took him by the arm back to their vehicle.

      You never know…


       
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      MichaelJT in reply to Richard Aubrey. | March 1, 2014 at 12:28 pm

      Interesting.

      Bull elephants will also frequently display what is called a, “false charge,” stopping within a few yards of a threat such as a hunter. Some times the hunter is lucky and only gets a tremendous scare.

      Other times the hunter becomes toe jam.


     
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    MichaelJT | March 1, 2014 at 12:23 pm

    Any event is never the result of just a single action. When you look back on it, there are always several steps along the way that, if another course of action were taken, would have altered the final scenario. It doesn’t matter if it is an industrial accident or a shooting. Move one aspect of the situation in another direction and everything changes.

    At first Walker could have just ignored the poor driving skills of the other person and let it go. At several other points along the way to pulling the trigger he could also have just let it go and drove away. He chose not to.

    How much of this decision making process is the result of being a cop and being used to intimidating people and having them obey your commands, and being enraged when they do not? The apologists for LEOs can save it, everyone knows there are a LOT of cops with authority and ego issues.

    A few years ago in an interstate highway rest area not far from my home a State Trooper shot a man in the back for turning his back and walking away. They had had an argument over some item on a MVR report the trooper had accessed and the man had decided to place a phone call (this was before small, hand held cell phones were so common)to attempt to clear the matter up. This show of disrespect so enraged the trooper that he drew his .40 caliber Glock (first mistake), put his finger inside the trigger guard (second mistake) and pointed it at the back of the retreating man (third mistake). The Glock pistol, having no external safety, discharged under pressure from the troopers finger and the man fell with a bullet in his back. He lost a kidney and part of his bowel as a result of being shot.

    The only thing that happened to the trooper was he lost his job. The reason the State Patrol gave for dismissing the trooper was, “Violation of Patrol policy.” In short, he was fired for drawing his weapon without good cause. NOT for nearly killing a man, just pulling his pistol. The man who was shot recovered substantial damages from the state’s insurance carrier.

    As it happened, I later had some business contact with this former trooper who had moved out of law enforcement and into the private sector. His poor anger management and decision making skills were still evident, he had never lost his arrogant, bullying cop attitude.

    Some people should just not be cops. I suspect Walker may be one of them, or perhaps serve as a example of how not to react to a provocation.

    Also, perhaps this was discussed earlier, but was he legally able to carry a firearm in MD?


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